Spence v Percy

[1991] HCATrans 373

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B27 of 1991

B e t w e e n -

PATRICIA DAWN SPENCE

Applicant

and

DUDLEY HUGH PERCY

First Respondent

DIRK ARTHUR KLYNSMITH

Second Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

Spence 1 13/12/91

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 DECEMBER 1991, AT 12.21 PM

Copyright in the High Court of Australia

MR R.A.I. MYERS: May it pleases the Court, I appear on behalf of the applicant with my learned friend,

MR P.O. BAKER. (instructed by Sapuppo & Associates)

MS S.M. KIEFEL, OC:  May it please the Court, I appear with

my learned friend, MR W.D.P. CAMPBELL, for the

respondent. (instructed by Morris Fletcher & Cross)

BRENNAN J: Yes, Mr Myers.

MR MYERS:  Your Honours, the special leave point in this

case seeks to have defined by this Court the limits
within the law will recognize a claim for damages

for nervous shock. Although it is submitted there

was an endeavour to define those parameters in

Jaensch v Coffey, there was no unanimity of views

expressed by the court. It is submitted on behalf

of the applicants, that His Honour

Mr Justice Derrington in, with respect to

His Honour, a very careful analysis of both the

relevant principles and the facts of the case

before him at first instance, concluded that the

plaintiff's condition was both foreseeable and fell

within the relevant parameters of proximity as they

were recognized by this Court in Jaensch's case.

Could I take the Court to page 16 of the record where His Honour Mr Justice Derrington dealt

with the matter, commencing on about line 14, where

His Honour said:

If as a ; .3.tter of policy an arbitrary

line must be drawn so as to exclude some

persons who suffer serious injury from nervous shock, as Mr Justice Deane then observed it is

intellectually more satisfying that the

limitation in this respect should be

associated with the directness of causation

rather than the totally irrelevant measure of

time, and no doubt this is what induced

His Honour to adopt the measure which he did.

Consequently, when consideration is applied to

what His Honour meant by the aftermath of the

original victim's injuries, it is difficult

not to apply the same reasoning, for it is a

conceptual distinction. It is true that after

his reference to Pratt and Goldsmith v Pratt

and consistently with it he was obviously

anxious in his statement of principle to

exclude any illness caused by the wear and

tear of the plaintiff's long-term nursing of

the victim or the plaintiff's distress caused

by the victim's condition. But that does not

go to the question of causal directness: it is

accommodated by the requirement of shock.

Spence 2 13/12/91

DAWSON J:  Now, it is true, if I may interpolate at that

stage, that His Honour restricted the damages to

damages for psychiatric illness which was incurred

after the death of the daughter, is that not right?

MR MYERS:  Yes, that is quite so, Your Honour.

DAWSON J: That is your problem, is it not?

MR MYERS:  No, with respect, it is not, Your Honour, because

what His Honour found is that the nervous shock was

caused at the time of the death of the daughter.

There had been no previously identifiable

psychiatric illness and the only difficulty, if

there was one at all, was the one of time. Now,

with respect, Their Honours in the Full Court

upheld the appeal against His Honour

Mr Justice Derrington's decision, but with respect

to Their Honours, two of Their Honours,

Mr Justice Shepherdson and Mr Justice Williams,

really reversed His Honour's findings on the matter

of fact.

Initially Mr Justice de Jersey - and I will

take Your Honours to the passages - seemed to

acknowledge that His Honour's findings of fact

could not be controverted and, in that respect,

His Honour Mr Justice de Jersey really by

implication considered that the way that it was

dealt with by his brothers was incorrect, but then

himself, having identified what seems to have been

the principles to be drawn from Jaensch v Coffey,

went on and really determined the matter again on a

question of fact, that is to say the improbability of the foreseeability of the nervous shock arising some three and a half years after the initial

trauma.

Of course, that was a matter that Your Honour

the presiding judge was keen to distance himself

from in Your Honour's decision in Jaensch v Coffey,

preferring to leave the matter on a foreseeability

basis and acknowledging the huge problems that

would confront a plaintiff in a case such as this.
The plaintiff confronted those problems, and in

what His Honour Mr Justice Derrington recognized as

a very, very difficult case, overcame the problems

in relation to the matter of foreseeability but, it

is submitted on behalf of the applicants, overcame

the problem in addition of proximity which was

raised of course by Mr Justice Deane in Jaensch's

case.

Your Honours, without reading the judgment of

His Honour Mr Justice Derrington at any greater

length, could I simply refer Your Honours to the

following page 17 of the record, commencing at

Spence 3 13/12/91

line 1 down to line 20 where His Honour again

continued his reference to the relevant principle,

and clearly concluded that on an application of the

principle, and notwithstanding the temporal

difficulty, that this action was one that fell
clearly within the principle as defined in Jaensch

v Coffey.

Could I take Your Honours but briefly to the

judgment of the Full Court - - -

BRENNAN J: 

Mr Myers, before you get to the judgment of the

Full Court, is this the proposition though, that
the defendant in this case was in breach of a duty
of care owed to the plaintiff in having the
accident with the daughter, because the defendant
ought to have foreseen that if the accident with
the daughter was had, the daughter would linger for
some time, die and that on that death, the mother

would suffer nervous shock?

MR MYERS: 

No, I would submit not, Your Honour, in this

sense, that the lingering for a time is simply an

irrelevant consideration which raises temporal

considerations which the Court has been keen to
expel.

BRENNAN J: In the facts of the case, was not the evidence such that the attention which the mother lavished

on the comatose daughter during the years of her

suffering and the death of the daughter which left

the mother then, in one sense, without a purpose in

life, was the causative factors which produced the

psychiatric illness?

MR MYERS:  No, with respect, Your Honour. The medical

evidence was that that certainly decompensated the

mother, but the evidence that was accepted by the

trial judge - and as His Honour

Mr Justice de Jersey acknowledged, it was a finding

that could not be overturned - it was the death of	the child that led to the shock which produced the	psychiatric illness. Although she was
decompensated, that was not in any way attributed
by His Honour to the ultimate injury to the
plaintiff.

DAWSON J: In Jaensch v Coffey, not everyone subscribed to

the observations of Mr Justice Deane on the

question of causal proximity. It may be a majority

talked in terms of aftermath, for instance. In any

event, it would seem that this is not just a
question of time if one does talk in terms of
causal proximity, because it was an event which was
removed from the scene of the accident, removed not

only by three years, but removed by location, by

character.

Spence 4 13/12/91

It was not the accident or its aftermath, if I

can use those terms, which caused this shock;	it
was the death of the daughter in circumstances quite removed from the circumstances of the
accident.	On the view of anyone in Jaensch v

Coffey, this would lie on the other side of the

line, would it not?

MR MYERS: Well, with respect not, Your Honour, otherwise,

as His Honour Mr Justice Derrington said, Jaensch v

Coffey would never have been decided in the way

that it was. His Honour drew the distinction, one

cannot say if there is to be a separation that the

separation of a day should be recognized or - - -

DAWSON J: But it is not a separation of a day, it is a

separation of miles; it is a separation of events;

it is a separation occurrence.

MR MYERS:  Yes, well with respect, His Honour

Mr Justice Derrington addressed it. Your Honour,

where can one logically, and of course this was the

very issue addressed in Jaensch v Coffey, draw the

line, unless there are principles of the sort that

were espoused by His Honour the presiding judge in

Jaensch v Coffey or perhaps even the much broader

principle that was advanced by the late

Mr Justice Murphy in that case. There were really,

with the greatest of respect to the Court, five

conflicting views and, with respect, Your Honour

Mr Justice Dawson acknowledged that there really

would come the day, and although Your Honour would

not have had this case in mind - - -

DAWSON J:  No.

BRENNAN J: That is your difficulty, Mr Myers.

DAWSON J:  You want a better case?

MR MYERS: With respect, Your Honour, I would submit that

this is perhaps the very case, because it is not as
if His Honour made an error of law.	It is not as

if he misapprehended any of the facts, and of

course, that is what Mr Justice de Jersey

recognized in the Full Court - - -

DAWSON J:  You say he just carried causal proximity to its

logical conclusion.

MR MYERS: Well, with respect, he really did not. What he

said - and, Your Honours, his judgment is really

quite important in this sense. Could I take

Your Honours - - -

DAWSON J: Whose judgment are we talking about now?

Spence 5 13/12/91

MR MYERS: This is Mr Justice de Jersey.

DAWSON J: Yes.

MR MYERS:	Could I take Your Honours to page 67 of the record, and line 5 is the commencement of the
passage which really, by implication, suggests, in
my respectful submission, that Mr Justice Williams
and Mr Justice Shepherdson were incorrect in their
formulation.  What he says is that:

The learned Judge found as a fact that

the respondent suffered "psychiatric illness

directly caused by shock at the death of her

daughter". There was evidence to support that

finding. The respondent gave evidence that

she was "very distraught" over the

circumstances of the death. Dr Spelman, a

psychiatrist, said in a report that news of

the death came as a "tremendous shock" to the

respondent, and was at the basis of her

subsequent severe and prolonged depressive

reaction. The other medical evidence was to

the effect that awareness of the death brought

about the psychiatric illness. There is

therefore no justification for disturbing that

finding of fact.

Now, with respect to Their Honours,

Justices Shepherdson and Williams, that is the very

finding of facts that they disturb to uphold the

appellant's appeal below - the respondent in this

special leave application. Now, His Honour having

acknowledged that that cannot be done, went on at

page 68 of the record, again commencing at page 5,

to consider, if I might put it, the Jaensch v

Coffey test.

Obviously the requirement for proximity

may be satisfied if a plaintiff suffers

psychiatric illness as a result of what he saw

or heard in the aftermath of an accident at

the schene. Deane J. said as much.

Dawson J. pointed out that the "aftermath" may

include the trip to the hospital and the scene

at the hospital. It would however be
difficult to regard the "aftermath" mentioned

in Jaensch v Coffey as extending to this
situation three years later.

Could I interpolate there, that is all

His Honour says. It is going to be difficult to

regard it as aftermath; it is certainly not

impossible to do so. His Honour then goes on, if I

could take Your Honours to the following page,

page 69, and deals with the proximity question

commencing at about line 8:

Spence 6 13/12/91

"Proximity" ordinarily involves nearness

or closeness if not immediacy, not limiting

those characteristics to the temporal.

Your Honours, might I pause there to refer to

Your Honour Mr Justice Dawson's observation in Gala

v Preston, 172 CLR 243, and page 276, where

Your Honour Mr Justice Dawson deals with this very

question of proximity, commencing on the 7th last

line, Your Honour said:

Whatever he intended to convey by the use of

that word, it is now clear that it extends

beyond nearness or closeness, physical or

otherwise. This case is a good illustration.

If it is said that, notwithstanding the

reasonable foreseeability of harm to the
plaintiff, there was no duty of care owed to
the plaintiff by the first defendant because

there was no relationship of proximity between

them, it cannot mean that their relationship

was not sufficiently close or near. The

relationship of driver and passenger is in

other circumstances a textbook example of a

proximate relationship. What is meant in the
present context is that the law does not

recognize a duty of care in the circumstances

in which the plaintiff sustained his injuries.
In other words, proximity embraces

considerations unrelated to closeness or

nearness and in a case such as the present it

is the identification of the underlying

principle which is the important thing.

Merely to describe it as a matter of proximity

is to mask the problem.

DAWSON J: That is right. What I was saying there was that

proximity is a rubbery term and therefore it is not

of any great help, but in cases such as this, one

has to look at past decisions, and one finds that

the line is clearly drawn, however you express it.

this case lies way outside the principle; if you	If you express it in terms of aftermath, clearly
express it even in terms of time, it lies way outside any accepted decision in which liability
has been imposed. On any criterion which you like
to suggest, in the established cases, this case is
way to one side, is it not?

MR MYERS: With respect, no, Your Honour, and might I take

up that point on aftermath?

DAWSON J: Because what you are doing is trying to

extrapolate something that Mr Justice Deane said,

and saying its logical extension embraces this

case. Of course, what Mr Justice Deane said was

not necessarily accepted by the other members of

Spence 13/12/91

the Court and, indeed, we have passed ahead a

little now and proximity has been examined in

various ways and perhaps found to be of less

assistance than it might have been thought at the

time of Jaensch v Coffey.

MR MYERS:  Yes. Your Honour, could I simply, in relation to

the question of aftermath, take up the point that

Your Honour makes. There was nothing more

inevitable, if I could put it in that way, that the

consequence of the tortfeasor's negligence was

ultimately going to produce the death of the

daughter. Your Honour, she was maintained on a

life support system for three-and-a-half years.

DAWSON J: But that only goes to foreseeability, and that is

not aftermath. Aftermath is a direct cut-off

point, perhaps arbitrary, but nevertheless a

cut-off point.

MR MYERS: But, Your Honour, could I - - -

DAWSON J:  I mean, it is foreseeable that someone who is

injured in an accident is going to cause untold

anguish to those near to him or her, if the

recovery is prolonged, but it is never suggested,

for that reason, that there is liability to those

who fall within the recognized category of persons

who are affected. And just as there is a cut-off

point with the category of persons who can recover

under this principle for nervous shock, so there is

a cut-off principle in relation to the

circumstances in which there can be recovery.

MR MYERS: With respect, Your Honour, could I illustrate it

in this way. If there had not been a life support

system available for the daughter at the relevant

time, she would probably have died almost

instantaneously. She was maintained for

three-and-a-half years, never being removed from a

life support system. Now, it cannot be - - -

DAWSON J: In those circumstances, it may be that the

plaintiff has suffered no damage, no injury,
because the injury she suffered was three years

later after the death in those circumstances.

MR MYERS:  Your Honour, with respect, it cannot be the law

that -

DAWSON J:  We are hypothetically

MR MYERS: Well, we say that it cannot be the law that if a

defendant, if a tortfeasor, maintains an injured
party on a life support system for a period of

time, be it a week, a month, a year or three years,

he escapes any obligation to pay damages for

Spence 13/12/91

personal injuries, but if a life support system is

not available and death is instantaneous,

recoverability is recognized by the law.

DAWSON J:  But that is not the point. Even if the daughter

had died instantaneously here the mother was not on the scene or at the hospital. All she received was

news on a telephone, was that not so, and it is not

suggested that news caused her any psychiatric

illness.

MR MYERS:  No. Your Honours, of course we would not have a

claim if it was that news which produced the

psychiatric illness, and His Honour was very

careful to find that there was no evidence of

psychiatric illness until death, so it is the death

that produces the result.

DAWSON J: Which is a completely new set of circumstances,

except that, of course, it is a consequence.

MR MYERS: Well, Your Honours, could I put it on this basis,

that each of Your Honours, in Jaensch's case,

really came to a similar conclusion for different

reasons, and Your Honour Mr Justice Dawson really

acknowledged, at the commencement of the judgment,

if I could simply take Your Honours to page 611, at

the bottom of that page:

The basic test of liability in negligence

for nervous shock is whether injury of that
kind was reasonably foreseeable in all the
circumstances of the particular case. Whether
that is the sole test or whether there is some

other limit upon the recovery of damages for

nervous shock which is based upon conceptions

of public policy - referred to by Deane Jin

this case as the proximity test - remains a

matter of controversy.

And then Your Honour refers to McLoughlin v

O'Brian.

Now, Your Honours, if one looks at McLoughlin v O'Brian - and I do not propose to take

Your Honours through it but a useful analysis of

McLaughlin v O'Brian appears in Mr Justice Deane's

judgment at page 599 - one really has to say that

the majority view in McLoughlin v O'Brian seemed to

treat foreseeability simpliciter as being the

appropriate test, with various garnishment on it,

if I could put it in that way.

It really does remain for this Court to

express a conclusive opinion as to whether the view

adopted by Your Honour the presiding judge in

Jaensch v Coffey was the correct one, because if it

Spence 9 13/12/91

is, if Your Honour Mr Justice Brennan's view is the

view that is to prevail, that is Your Honour

discusses the difficulties that would be associated
with a case ..... but, as Your Honour says, at the

end of the day it is a matter of fact, there is

simply no basis for interfering with

Mr Justice Derrington's decision.

BRENNAN J:  I am not sure about that, even if one approaches

it on the basis which I expressed in Jaensch v

Coffey. In this case, the particular psychiatric injury is that which was sustained as the result of

the death of the daughter, and yet one cannot

really postulate that as a nervous shock situation

if the cause of that condition was contributed to

in any substantial or material way by the trauma to

which the mother was subject for the three years of

the daughter's comatose condition.

One can either eliminate the time and treat

the death, as it were, .as happening immediately and

say, "Very well, we ignore the time factor", or the
events that took place during that time must be
taken into account. If you take them into account,
then it is difficult to see that that falls within

the foreseeability criterion which I favoured.

MR MYERS:  Could I take Your Honours to page 570 of

Your Honour Mr Justice Brennan's judgment. It is

submitted with respect that the statement that

Your Honour makes midway down that page is quite

correct, with respect, and really imposes an

obligation to make findings of fact as were made in

this case, but nothing more.	As Your Honour says
there:

When the scene of an accident is left

behind, and the perception of some later
phenomenon induces a psychiatric illness in a
plaintiff, the factual difficulties in the way

of establishing negligence occasioning nervous

shock are greatly increased though the

principles are unchanged. The occurrence or

existence of the later phenomenon, its sudden

perception by the plaintiff and the inducing
of the plaintiff's psychiatric illness must be

proved to be the results, and the reasonably

foreseeable results, of the defendant's

conduct. But the separation in time and

distance of the later phenomenon from the

immediate consequences of the defendant's

conduct may make it difficult to prove the

elements of causation and reasonable

foreseeability as they apply in cases of

nervous shock.

Spence 10 13/12/91

Of course, Your Honour, at the top of 571,

effectively repeats that and says that these are

matters of fact. Your Honour really repeats the

test at pages 572 and 573. A third of the way down

page 572, after citing what Lord Wilberforce said

in McLaughlin v O'Brian - and might I remind

Your Honours that the Chief Justice expressly

reserved his opinion as to whether what

Lord Wilberforce said in that case was correct in relation to matters of proximity - Your Honour

having cited that:

Lord Wilberforce acknowledged that, although

close proximity to the accident in time and

space is necessary, a plaintiff might recover

when he comes from nearby and very soon upon

the scene. I would regard those

considerations to be relevant to the finding
of facts, but not to be principles limiting

liability.

Your Honours, there is no clear view that emerges

from Jaensch v Coffey. If anything, there are five

divergent views. Your Honour Mr Justice Dawson

acknowledged that it was not necessary to go beyond

the facts of this particular case.

Mr Justice Murphy would effectively allow anybody

that could prove foreseeability to succeed. The

Chief Justice acknowledged only foreseeability from

McLaughlin v O'Brian and specifically reserved,

initially at page 551, towards the bottom of the

page where he said:

I have had the advantage of reading the

judgment prepared by my brother Deane. I

agree with his conclusion and, in general,
with his reasons.

Then at page 555 he went on to refer to McLaughlin v O'Brian and reserved his opinion completely on

the correctness of the proximity test. McLaughlin

v O'Brian, as it has been analysed - and in my

submission, it is properly analysed at page 599 -

really shows that there was no concluded opinion in

the House of Lords. Most recently, as we say in

our affidavit in support of the application, the

many, many cases arising out of the Hillsborough

disaster are cases that have been given special

leave to go to the House of Lords.

In that case, initially Mr Justice Hidden at

first instance, in a very arbitrary way, gave leave
for actions to proceed, or at least permitted
actions to proceed, where close relatives and

friends had either been at the soccer ground or

watching a direct telecast. Those people that only

Spence 11 13/12/91

saw it in the news some two or three hours l~ter

were arbitrarily locked out of their claim forever.

Now, the Court of Appeal said that was quite

wrong and overturned Mr Justice Hidden. But they

have expressed doubt. They have said the matter

must be resolved and the House of Lords is going to

consider it, as we understand it, some time next

year.

DAWSON J:  But even on the best view you can put forward,

and that would seem to be ..... to Mr Justice Deane's

view - that is the one you rely on - he would

clearly exclude these circumstances.	He
acknowledges at page 606 that it is -

reasonably clear that the requisite duty
relationship will not, on the present state of

the law, exist in a case where mere

psychiatric injury results from subsequent

contact, away from the scene of the accident

and its aftermath, with a person suffering

from the effects of the accident.

MR MYERS:  Yes, with respect, that is acknowledged and that

is dealt with by His Honour the presiding judge.

Mr Justice Derrington specifically dealt with it

and found that was not the cause of the psychiatric

illness. It was the death. It was a sudden onset

of nervous shock.

DAWSON J: Well, certainly the death was away from the

accident. It was after a period of contact, a

prolonged period of contact which gave rise to

emotional difficulties. Surely within the

principle as it is expressed there this case would

be way outside anything that was said in Jaensch v

Coffey.

MR MYERS: With respect not, Your Honour, because His Honour

specifically found it was the notification of the

death that produced the psychiatric disability.

Although the lady was decompensated, as His Honour

said, it was not the consequence, because

His Honour acknowledged that such a claim could not

succeed. And, of course, Mr Justice de Jersey, in

the passage to which I have referred you, said that

matter is correct, that is to say, if one simply

the facts could not be controverted, and if,

looks at foreseeability, and at the end of the day as Your Honour said on a number of occasions it is

simply a matter of fact, this judgment of

His Honour Mr Justice Derrington should never have

been overturned.

Spence 12 13/12/91

BRENNAN J: It depends whether or not the facts being

properly appreciated were capable of supporting the

decision that His Honour came to.

MR MYERS: Well, His Honour Mr Justice Derrington says they

were. Mr Justice de Jersey says they were. He

said His Honour could not be controverted on that

issue, then returns to a question of proximity but

ultimately, as Your Honours will see from his

judgment, reverts to a factual issue to decide the

matter adversely to the plaintiff.

BRENNAN J: Yes.

MR MYERS:  But he acknowledges that the factual issues and

the factual findings were made in the applicant's

favour. They are our submissions, Your Honour.

BRENNAN J:  Thank you, Mr Myers. We need not trouble you,

Ms Kiefel.

MS KIEFEL: Thank you, Your Honours.

BRENNAN J: Despite the careful argument of Mr Myers, the

Court does not think that there is sufficient

reason to doubt the decision of the Full Court, nor

do we think that this is a case which could

usefully serve to clarify any questions arising

from the judgments of this Court in Jaensch v

Coffey, (1984) 155 CLR 549. Accordingly, the

application for special leave is refused.

MS KIEFEL:	The respondent asks for its costs, Your Honours.
BRENNAN J: Very well, Ms Kiefel.	What do you say about

that, Mr Myers.

MR MYERS:	I cannot oppose that, Your Honours.
BRENNAN J: It is refused with costs.

AT 12.52 PM THE MATTER WAS ADJOURNED SINE DIE

Spence 13 13/12/91